The Court of Appeal has upheld a key provision in Kenya’s Matrimonial Property Act, ruling that property acquired during marriage should be divided according to each spouse’s contribution rather than automatically split equally after divorce.
In a decision that reaffirmed an earlier High Court ruling by Justice Mativo, the appellate judges dismissed a petition by the Federation of Women Lawyers (FIDA-Kenya), which had sought to have Section 7 of the Matrimonial Property Act declared unconstitutional.
FIDA had argued that the section discriminates against women and contradicts Article 45(3) of the Constitution, which guarantees equality in marriage. The women’s rights lobby urged the court to establish a 50:50 property division rule, regardless of who contributed what during the marriage.
According to FIDA, women are often disadvantaged under the current system, as their non-monetary contributions—such as domestic work, childcare, emotional support, and home management—are difficult to quantify in court.
However, the Attorney General, who was a respondent in the case, maintained that the law is fair and constitutional, noting that it already recognises both monetary and non-monetary contributions. The AG warned that FIDA’s proposal for automatic equality would disregard fairness and individual effort, undermining justice.
In their judgment, the three-judge bench found that Section 7 is consistent with the Constitution, ruling that property should be shared based on proven contributions. They emphasised that contributions can take different forms, including household chores and moral support, which courts must evaluate during property division.
“The section neither violates nor contradicts Article 45(3) of the Constitution,” the judges stated.
The ruling reinforces a 2023 Supreme Court decision that equality in marriage refers to equal rights and responsibilities, not necessarily an equal 50/50 split of assets upon divorce.
This decision clarifies that fairness not automatic equality will guide how matrimonial property is shared in Kenya.
